Judicial Summaries

Cherise Gaffney
Stoel Rives LLP

Section 4 Opinion by the Fifth Circuit has Significant Implications for Section 7 and the Existing Regulatory Regime

Sierra Club v. U.S. Fish and Wildlife Service (FWS), 245 F.3d 434 (5th Cir.) (Mar. 15, 2001): This case began as a challenge to the FWS decision not to designate critical habitat for the gulf sturgeon. FWS reasoned that because "jeopardy" and "adverse modification of critical habitat" were so similar in practice, that the gulf sturgeon would receive no benefit from a critical habitat designation. This caused the Sierra Club to challenge provisions of the Services' consultation regulations which define "destruction or adverse modification" of critical habitat as an action which affects both the survival and recovery of a listed species. Id. at 441 (citing 50 C.F.R. § 402.02). The Fifth Circuit Court of Appeals held that this definition "sets the bar too high" and is inconsistent with the ESA's definition of critical habitat, which is "grounded in the concept of 'conservation,'" a recovery-oriented goal. Id. at 442. The court noted that, since the jeopardy standard already requires consultation where an action may affect both survival and recovery, the Services would be more likely under the current regulatory definition to find no additional benefit in designating critical habitat, thus leading to a higher likelihood that the Services would find critical habitat designation to be "not prudent." Id. at 443. The court therefore held that the regulatory definition of "destruction and adverse modification" is facially invalid, and found the Services' "not prudent" determination for gulf sturgeon critical habitat, which relied on that definition, to be arbitrary and capricious. Id. at 443, 447. FWS declined to seek Supreme Court review of this decision and will apparently propose a new national definition of "adverse modification" of critical habitat instead. At present, there is no regulatory definition for "adverse modification" of critical habitat in the Fifth Circuit.

The Ninth Circuit Weighs in on the Meaning of the Section 4 Listing Criterion "Throughout a Significant Portion of its Range"

Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir.) (Jul. 31, 2001): This suit challenged FWS' decision not to list the flat-tailed horned lizard as a threatened species. The court found FWS' decision arbitrary and capricious, holding that the Secretary relied on an improper standard for determining whether a species is "in danger of extinction" throughout "a significant portion of its range." Finding such a phrase to be "something of an oxymoron" because extinction suggests "total rather than partial disappearance," and rejecting both parties' explanations of the phrase's meaning, the court ultimately looked to the ESA's legislative history for guidance. Id. at 1141. There, the court found that Congress had meant to protect against situations in which one population in a species requires protection while another has adequate numbers. Id. at 1144-45. The court concluded that a species can therefore be extinct throughout a significant portion of its range if there are major geographical areas in which "it is no longer viable but once was." Id. at 1145. When declining to list, the court noted, the Secretary must explain her conclusion that the area in which the species no longer lives is not a "significant portion of its range." Id. at 1145.

National Marine Fisheries Service (NMFS) Decision not to List the Cook Inlet Beluga Whale Upheld

Cook Inlet Beluga Whale v. Daley, 2001 WL 946868 (D.D.C.) (Aug. 20, 2001): The court upheld NMFS' decision not to list the Cook Inlet Beluga Whale under the ESA. The whale was already listed as depleted under the Marine Mammal Protection Act (MMPA), and the court found that Native American harvesting, the most significant factor in the whale's decline, could be restricted under the MMPA just as easily as under the ESA. Id. at *4. Although NMFS had admitted that other human factors could be contributing to the species' decline, and while the court recognized the possibility of stochastic events, the court nevertheless held that listing was not required simply because the agency was unable to rule out factors other than the subsistence harvest. Id. at *5.

NMFS Decision to List Coho Salmon Remanded for its Treatment of Hatchery Fish

Alsea Valley Alliance v. Evans, 2001 U.S. Dist. LEXIS 14443 (D. Ore.) (Sept. 10, 2001): The court held that NMFS' listing of the Oregon coast coho salmon as threatened was arbitrary and capricious because NMFS failed to consider hatchery fish which are part of the same evolutionarily significant unit (ESU). Although NMFS had concluded that nine hatchery stocks were part of the same ESU or distinct population segment (DPS), the agency did not consider them "essential for recovery" and therefore did not include them in the listing determination. Id. at *19. The court objected to NMFS' distinction between stocks below the DPS level. Id. "Once NMFS determined that hatchery spawned coho and naturally spawned coho were part of the same DPS/ESU, the listing decision should have been made without further distinctions between members of the same DPS/ESU." Id. at *20. The court noted that NMFS' listing decision might have been proper if it had defined hatchery coho as a separate DPS in the first place. Id. The court speculated, however, that listing hatchery coho separately might not be possible because they are not "substantially reproductively isolated" from natural coho. Id. at *20-21 (dicta). The government has decided not to appeal the ruling; however, the court has allowed intervention by environmental groups to appeal. Environmental groups have appealed and the Ninth Circuit has stayed the lower court ruling pending appellate review.

The Ninth Circuit Issues a Significant Decision on the Section 7 Duty to Reinitiate Consultation

EPIC v. Simpson Timber Co., 255 F.3d 1073 (9th Cir.) (Jul. 9, 2001): The Ninth Circuit Court of Appeals affirmed the dismissal of a suit against a timber company and the FWS which challenged FWS' refusal to reinitiate internal Section 7 consultation on its issuance of an incidental take permit for the company's spotted owl habitat conservation plan (HCP). The Environmental Protection Information Center (EPIC) alleged that FWS must reopen the spotted owl HCP because marbled murrelet and coho salmon were subsequently listed, even if Simpson Timber could operate under its spotted owl HCP in a manner that did not take murrelets or salmon. The court upheld the district court's determination that FWS did not retain sufficient discretionary involvement and control to give rise to a duty to reconsult on the impacts of timber operations on two newly-listed species; none of the provisions in the HCP's implementation agreement allowed the FWS to impose measures to protect the marbled murrelets or coho salmon. Id. at 1081-83.

Section 7 Consultations Solely at the Watershed Level Questioned by Ninth Circuit

Pacific Coast Federation of Fishermen's Assoc., Inc. v. NMFS, 253 F.2d 1137 (9th Cir.) (May 31, 2001), as amended, 2001 WL 1008147 (Sept. 5, 2001): The court in this case upheld the district court's determination that NMFS acted arbitrarily and capriciously in concluding that proposed timber sales would not likely jeopardize listed species. Specifically, NMFS assessed the sales' impacts to listed species at the watershed level, thus failing to address short-term or localized degradations. The court found that a watershed only approach disregarded localized effects that can have "significant aggregate effects," and ignored the importance of the near-term period on listed species' survival. Id. at 1145-47.

No Standing for Allegation that California Forest Practice Rules Violate the Section 9 Take Prohibition

Environmental Protection Information Center (EPIC) v. Tuttle, 2001 WL 114422 (N.D. Cal.) (Jan. 22, 2001): Seeking an injunction against further timber harvesting activities in California that were alleged to have resulted in take of coho salmon, EPIC and other organizations sued the director of the California Department of Forestry (CDF) and other State officials in their official capacity for alleged violations of section 9 of the ESA. EPIC claimed that CDF's Forest Practice Rules (FPRs), with which timber harvest plans (THPs) must comply, contained inadequate standards for avoiding take of listed coho salmon. The court held that the FPRs do not, by themselves, confer authority to cut trees, and are merely a guide and minimum standard. Rather, the court explained, plaintiffs should challenge specific THP permits. Id. at *5-6. In so holding, the court noted that it fully agreed with the "unremarkable" proposition that a regulatory agency can be found liable under the ESA. Id. at *7.

In First ESA Fifth Amendment Claim to Succeed, Claims Court Finds a "Physical Taking" of Water

Tulare Lake Basin Water Storage District v. U.S., 49 Fed. Cl. 313 (Fed. Cl.) (Apr. 30, 2001): California water users sued the federal government, claiming that contractually-conferred water rights were taken from them when NMFS imposed ESA restrictions on water out-flows to protect endangered delta smelt and winter-run chinook salmon in California's Central Valley. The restrictions were imposed pursuant to a series of NMFS and USFWS biological opinions concluding that continued operation of BOR's Central Valley Project and the related State water project managed by the California Department of Water Resources would jeopardize listed fish. Id. at 315. The court held that the effect of the Services' restrictions were not merely consequential injuries or a frustration of expectations, but in fact constituted a physical taking of property which "completely eviscerates the right itself since plaintiff's sole entitlement is to the use of water." Id. at 318-19. The government has not yet decided whether to appeal the decision regarding liability. In the meantime, the parties are proceeding with the damages phase of the litigation.